afzal- should he die

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Economic and Political Weekly September 17, 20054112

The court’s rejection of the confessionhas two parts. In the first, it mentioned aseries of objections raised by the defencewhich the court found “plausible and per-suasive” (SCJ , p 149). However, the courtheld that “it is not necessary to rest ourconclusion on these probabilities,” since,in the second part, the court found somedirect reasons to set aside the confession.

The investigating agency, namely, thespecial cell of the Delhi police, violatedeven the minimal safeguards sanctionedunder the otherwise draconian POTA.These included the denial of legal assis-tance to the accused after POTA wasintroduced in the case, the failure to informany relative,6 taking the accused back tothe police custody after the confession,and the failure to give the confessor suf-ficient time to reflect before the confession(SCJ , pp 150-58). According to the court,these violations themselves have a “bear-

ing on the voluntariness of confession”(ibid, p 158).Why were all these basic safeguards

systematically violated? For an answer, itis worth discussing the “probabilities”which the court found “plausible andpersuasive”; they lead us far beyond therestricted legal window through which thecourt looked at the Parliament attack case.For brevity, we discuss just the issue of the timing of the confession (See Decem-

ber 13, pp 86-90, for more).The confessions were recorded on

December 21, 2001, after POTO was

introduced in the case on December 19.As noted, Afzal and Shaukat allegedlymade disclosure statements immediatelyafter their arrest on December 15, 2001.Displaying incredible loquacity, both Afzaland Shaukat had apparently poured outeverything they knew about the conspiracy.Following the disclosures, the police hadalready gathered most of the alleged factsof the case before December 19. The con-fessions themselves did not contain any-thing that was not already available to thepolice on independent investigation based

on the earlier disclosures (SCJ , p 148).Why then were the confessions, allowedby POTO, needed?

More importantly, “there was no percep-tible reason why the accused should nothave been produced before a judicialmagistrate for recording a confessionunder the provision of Cr P C” (ibid, p 148;also, p 59). According to the court, thedefence held that the accused were“not prepared to make the confession ina court and, therefore, the investi-gating authorities found the ingenuity of

role as a conspirator in the Parliamentattack case – which has been detailed bythe prosecution and confirmed by threecourts of law – has been established be-yond a shadow of doubt.”2

With three of the “estates of democracy”surrounding him, Mohammad Afzal haslittle chance of escaping the hangman.More significantly, as the noose tightens,

Afzal will die in silence. Yet, there is thelegislature – the first estate. Is there a casefor Mohammad Afzal before the forum of the people?

Confession for the State

The judicial proceedings recorded twooccasions on which Mohammad Afzalspoke before the law: his confessionalstatement before the police and his state-ment under Section 313 of the CriminalProcedure Code. There was also the “dis-

closure statement” recorded by the policesoon after his arrest. But, disclosure state-ments by themselves are not admissible asevidence.

In his confessional statement, Afzalnarrated the entire conspiracy and theoperational details of the attack on Parlia-ment. I wish to draw the attention to thefollowing part of the story of conspiracy.3

It begins with Maulana Masood Azhar, theleader of Jaish-e-Mohammad, based inPakistan, instructing, at the instance of theInter-Services Intelligence (ISI), one GhaziBaba, the supreme commander of the outfit

in Kashmir, to carry out actions on impor-tant institutions of India. Ghazi Babadirected one Tariq Ahmed to arrange foran operation. Tariq got in touch withMohammad Afzal and motivated him to join the jehad for the liberation of Kash-mir. Afzal met Ghazi Baba and the planwas worked out. It was going to be a jointoperation of Jaish-e-Mohammad andLashkar-e-Toiba. Begin- ning with oneMohammad, Afzal arranged for severalmilitants – Haider, Hamza, Raja and Rana– to bring huge quantities of arms, explo-

sives and a laptop computer to Delhi intopre-arranged hideouts. In Delhi, the teamgot in touch with Afzal’s cousin, ShaukatHussain Guru, Shaukat’s wife Afsan Guruand S A R Geelani, a lecturer of Arabicin Delhi University.

In the beginning, the terrorists kept theiroptions open between the Delhi assembly,UK and US embassies, Parliament and theairport. Reconnaissance was conducted ac-cordingly. However, Ghazi Baba instructedthem over satellite telephone to attack Par-liament. In a final meeting on the night of

December 12, 2001, the militants handedover Rs 10 lakh to Afzal, Shaukat andGeelani for their part in the conspiracy;they also handed over the laptop to bereturned to Ghazi Baba.

This story was presented by the police,argued for by the prosecution, propagatedrepeatedly in full colours by the print andthe visual media for the past three and a

half years, and ratified by two courts of law. The prosecution’s story was trans-formed into a telefilm by Zee TV. “Thefilm was shown to the then prime ministerand then the home minister, and the mediarecorded their approval of the film”,Nandita Haksar reports.4 The film wastelecast repeatedly before the first judg-ment on the case was delivered ( Decem-

ber 13, p 27 for more).Apart from Afzal’s confessional state-

ment, there was never an iota of indepen-dent evidence corroborating the story just

sketched ( December 13, pp 41-44). Citing“incontrovertible evidence” on the floor of Parliament and holding Pakistan respon-sible for the attack, the governmentmounted a massive military offensive thatbrought India and Pakistan to the brink of war with fingers on the nuclear trigger.Nearly 10,000 crore of rupees were spentand 800 soldiers died in the war effort.Reportedly, over 100 children died andmany farmers lost their livelihoods due toheavy mining in the border areas. “Afterthe unfortunate incident,” the high courtobserved, “the clouds of war with our

neighbour loomed large for a long periodof time,” “the nation suffered not only aneconomic strain, but even the trauma of an imminent war.”5

The Supreme Court has now set asideMohammad Afzal’s confessional statementin the following words: “All these lapsesand violations of procedural safeguardsguaranteed in the statute itself impel us tohold that it is not safe to act on the allegedconfessional statement of Afzal and placereliance on this item of evidence on whichthe prosecution places heavy reliance”

(SCJ , pp 158-59).With the confession set aside, the story of

conspiracy linking ISI, Masood Azhar,Jaish-e-Mohammad, Lashkar-e-Toiba,Ghazi Baba, Tariq, and the rest, disappearsfrom the judgment of the court. All welearn from the judgment is that five heavilyarmed men with sundry names attackedIndian Parliament and died, and thatMohammad Afzal participated in the con-spiracy (SCJ , p 193). Period. In the twoweeks since this judgment, the entire mediahas failed to mention this enormous fact.



Economic and Political Weekly September 17, 2005 4113

adding POTA offences at that stage so asto get the confession recorded by apolice officer according to the wishes of the investigators” (ibid). As noted, thecourt found this argument “plausible andpersuasive”.

Until alternative explanations are of-fered, the following picture emerges. Thegovernment wanted to use the ‘window of

opportunity’ offered by the attack on Par-liament to go to war against Pakistan( December 13, pp 5-13). After the investi-gations were virtually over within daysafter the attack, there was no evidence tolink the attack with Pakistan-sponsoredterrorism. Hence, POTO was bela-tedly introduced on the December 19; soonafter, the government mobilised its troops.Afzal was made to confess before the mediaon the December 20 so as to lend cred-ibility to the official confession to followon December 21. The eminent lawyer

Shanti Bhusan suggested that “the policefailed to crack the case” as “all the fivemilitants died in the attack”. So thepolice “framed people” in order “to createa conspiracy case” for the governmentto take the country “to the brink of anuclear war”.7

Once POTO was introduced, RajbirSingh, an assistant commissioner of policein the special cell was made the investi-gating officer (IO) of the case: “Singh wasalready under a cloud when the home mini-stry, then under L K Advani, appointedhim to head the investigation into the

attack on the Indian Parliament”.8

The appointment was technically correct,yet one wonders if it was proper to appointsuch a junior officer as IO in this immen-sely complex and sensitive case.9 Themodus operandi of securing the confessionthrows light on the issue. With ACP RajbirSingh as IO, the confession was obtainedby the DCP Ashok Chand in the specialcell itself. It is not surprising that legalassistance was not offered, no relativeswere informed, and that Afzal was takenback to police custody on some pretext.

Things stayed within the special cell, nochances were taken. Mohammad Afzalwas a pawn in the designs of the state.

Trial by Design

The introduction of POTO also allowedthe trial to be held in the designated specialcourt for POTA. The Indian law ministryappointed Shiv Narayan Dhingra as aspecial judge: “by the 1990s, he washandling cases of terrorism and had earnedthe name the hanging judge”.10 The trial

began in June 2002 in an atmosphere inwhich the trauma of an imminent war andthe smoke from the pogroms in Gujarathung over the nation, the country wasbaying for the blood of the accused aftera massive propaganda by the police andthe media,11 and POTA had become thelaw of the land.

Very few lawyers were willing to oblige:

most “did not want to be associated withthe Parliament attack case”.12 Moreover,the special judge ordered a ‘fast-track’ trialin this immensely complex case. The triallasted just over five months in which theprosecution presented 80 witnesses. It ishard to see how a fair trial could be accom-plished under these conditions.

The defence of Mohammad Afzal, thekey figure in the state-sponsored story of conspiracy, suffered the most. With greatdifficulty, Geelani’s defence managed toproduce some witnesses; Afzal had none.

He had no legal defence in the periodbetween his arrest on December 15, 2001and the filing of the chargesheet on May14, 2005; in other words, no counsel hadstudied the complex case. When he “de-clined to engage a counsel on his own,”the special judge appointed the noted crimi-nal lawyer Seema Gulati, who took chargeon May 17 along with her junior NeerajBansal (SCJ , p 139).

On June 5, all the defence lawyers agreednot to dispute postmortem reports, MLCs,and documents related to recovery of gunsand explosive substances at the spot resul-

ting in “dropping of considerable numberof witnesses for the prosecution”. The courtdid not dispute the contention of the defencecounsel at the Supreme Court that Gulati“took no instructions from Afzal or dis-cussed the case with him”. Taking a strictlylegalistic view, the court merely held thatthe “counsel had excercised her discretionreasonably. The appellant accused did notobject to this course adopted by the amicusthroughout the trial” (SCJ , p 140). OnJuly 1, Gulati “filed an application prayingfor her discharge from the case citing a

curious reason that she had been engagedby another accused Gilani” (ibid, p 140).

On July 2, Gulati’s junior Neeraj Bansalwas appointed amicus. Afzal protestedagainst this nomination on July 8 and sub-mitted a list of four senior advocates. Sincenone was willing to take up the case, Bansalcontinued as amicus for the rest of the trial.“In capital cases”, Ram Jethmalani ob-served, “particularly those that arousepublic prejudice and anger against theaccused making it difficult for them toarrange for their own defence, it was the

duty of the court to provide adequate de-fence at state expense”. In response, takinga strictly legalistic view, the Supreme Courtheld that “taking an overall view of theassistance given by the court and the per-formance of the counsel, it cannot be saidthat the accused was denied the facility of effective defence” (ibid pp 141-42).

The amicus, Neeraj Bansal, did not even

pay a visit to his client: “his presence andparticipation have caused confusion andprejudice vitiating the trial,” Jethmalaniobserved.13 Afzal’s wife Tabassum says,“The court appointed a lawyer who nevertook instructions from Afzal, or cross-examined the prosecution witnesses. Thatlawyer was communal and showed hishatred for my husband”.14 The SupremeCourt held that the “criticism against thecounsel seems to be an afterthought raisedat the appellate stage” (SCJ, p 139). Whereelse could it be raised and who could have

raised it at the trial stage?These concerns assume immense signi-ficance now that the Supreme Court hassentenced Mohammad Afzal to death onthe sole basis of circumstantial evidenceadmitted in the trial. We must also notethat this body of evidence was presentedby an investigating agency widely knownfor false arrests and fake encounters.15 Inthe Parliament case itself it is now clearthat the special cell tried to frame at leastthree innocent persons. Earlier, the highcourt had mentioned the production of false arrest memos, doctoring of telephone

conversations and illegal confinement of people to force them to sign blank papers.As we saw, it is evident that false confes-sions were extracted by force.

This is not the place to study in detailthe Supreme Court’s handling of the cir-cumstantial evidence against MohammadAfzal. We will cite just two pieces of evidence to illustrate the general problem.

(1) The court held that Afzal knew thedeceased terrorists since he identifiedthem. Afzal also admitted the same in hisconfession. With the confession set aside,

the sole evidence against Afzal is that heidentified them in the morgue. The evi-dence has two parts: the identificationmemo prepared by the police (PW76), andAfzal’s signature against the column ‘iden-tified by’ in the postmortem report. As forthe identification memo, the court reliedon it because “there was not even a sug-gestion put to PW76 touching on thegenuineness of the documents relating toidentification memo” (SCJ , p 161); in otherwords, Neeraj Bansal did not object. Asfor the signatures, the defence counsels



Economic and Political Weekly September 17, 20054114

decided not to dispute the postmortemreports, as noted. It did not materially affectthe other accused, but Afzal is likely topay with his life for this decision takenwithout his consent. In his statement u/s313 Cr P C, Afzal said: “I had not iden-tified any terrorist. Police told me the namesof terrorists and forced me to identify”( December13, p 165).

(2) It is a crucial part of the prosecution’sstory that the police explain how theyreached Mohammad Afzal beginning withthe site of attack; otherwise, the arrestswould seem to be pre-planned rather thanbased on a chain of leading evidence.16

The prosecution claimed that the policefinally reached Afzal through a sequenceof arrests beginning with Geelani, whomthe police could trace first because he helda mobile phone registered with the telecomcompany Airtel. But the letter from Airtelfurnishing the call records and Geelani’s

residential address was dated December 17,2001; all the accused had been arrested byDecember 15. How could the police arrestGeelani two days before it got the phonerecords that “led” them to him? This letterposes other serious problems for theprosecution’s case regarding the actualdate on which POTO was introduced inthe case ( December 13, pp 74-86). How-ever, the court did not “consider it necessaryto delve further” into this letter since “noquestion was put to PW35 – the securitymanager of Airtel” (SCJ , p 30). Further,“none of the witnesses pertaining to the

FIR were cross-examined” (SCJ , p 31).Whatever be the legal merit of the court’s

judgment on Afzal, the question arises as towhether there is a moral warrant for capitalpunishment on the basis of a trial like this.

A Surrendered Militant

The question of moral warrant arisesfrom another more insidious dire-ction. Given the involuntary nature of theconfession, it is pertinent to reflect on thefact that Afzal agreed to sign the document

at all. Was Afzal a free agent during thoseearly turbulent days right after the attack when he was in police custody before andafter the making of the confession? Couldhe afford to refuse the recording of hisconfession at that stage when he had alreadydone the rounds with the police, allegedlyincriminating himself in everything thatthe police wanted?

These queries are compounded by thefact, as repeatedly noted in all the judg-ments, that Afzal is a surrendered militant.Afzal was not only supposed to report

regularly to the security forces, but wasalso under their surveillance. How couldsuch a person mastermind and executesuch a complex conspiracy? And how coulda terrorist organisation rely upon such aperson as the principal link for theiroperation? Did he enter into some arrange-ment with the security forces to buy hissurvival? Some dark answers to these

questions begin to form when we look atAfzal’s statement 313.

The statement 313, unlike confessionunder POTA, is made by an accused beforethe court rather than before a police officer;also, this statement is made when anaccused is in judicial custody, not in policecustody. The special judge of the POTAcourt recorded the fact that “a surrenderedterrorist has to mark his attendance withregular intervals at the STF, J&K” (para222). “STF, J&K” stands for State Task Force, Jammu and Kashmir, a shadowy

counter-insurgency outfit of the state. Toour knowledge, this fact is stated only inAfzal’s statement u/s 313 Cr P C. With thiscitation, therefore, the Special Court judg-ment lend credibility to the statement.Furthermore, there are manifest instancesof honesty and truthfulness in Afzal’s state-ment 313. For example, Afzal did not shyaway from admitting the possibly incrimin-ating fact that he brought Mohammad fromKashmir and that he accompanied Moham-mad when the latter purchased a second-hand ambassador car. When his lawyerattempted to deny this fact during the trial,

Afzal intervened to insist that he indeedaccompanied Mohammad (SCJ , p 182).

Pursuing the relevant paragraph of thisstatement then, we learn about the circum-stances of Afzal’s surrender to BSF in1993 in detail. Afzal states: he was fre-quently asked by the STF to work for them;he often paid large sums of money to theSTF to avoid and/or escape detention; he

was detained as late as in 2000; he wasasked to become a special police officer,which is an euphemism for ‘police in-former’; he met one Tariq in the STF camp;this Tariq was already working for the STFand he wanted Afzal to join the force aswell; Afzal was introduced to one Moha-mmad by Tariq also in the STF camp; Tariqpersuaded him to take Mohammad to Delhifrom where Mohammad was planning togo abroad ( December13, pp 90-92).

A number of disturbing consequencesfollow. First, Afzal was in close touch with

the security agencies throughout the pe-riod 1993 to at least 2000. Second, threeof the persons allegedly involved in theattack – Tariq, Afzal, Mohammad: themastermind, the link, the leader of theattack – originated from the STF campitself. In addition, we now know of a pressreport from Thane that four terroristsincluding one ‘Hamza’ – the same nameas one of the terrorists killed in the Par-liament attack – had been arrested by theThane police in November 2000, andhanded over to the J and K police forfurther investigation.17



Economic and Political Weekly September 17, 2005 4115

Grave, unanswered questions surroundthe Parliament attack case even after three judicial pronouncements. Who attackedParliament and what was the conspiracy?On what basis did the NDA governmenttake the country close to a nuclear war?What was the role of the State Task Force(J and K) on surrendered militants? Whatwas the role of the special cell of Delhi

police in conducting the case?It will be a travesty of justice to hang

Mohammad Afzal without ascertaininganswers to these questions. Given themomentous nature of these questions, forthe future of Indian democracy nothingless than a Parliamentary inquiry isneeded to address them ( December 13,pp 96-103).

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Notes

1 Judgment of the Supreme Court of India (henceforth, SCJ ), August 4, 2005,pp 203-04.

2 The Hindu, edit page, August 6, 2005.3 For more details, see my December 13:

Terror over Democracy (henceforth, Dece-mber13), Bibliophile South Asia, New Delhi,2005, pp 38-41.

4 Nandita Haksar, ‘Tried by the Media: TheS A R Geelani Trial’, Crisis/Media: Sarai

Reader 04, Centre for Studies in Developing

Societies, Delhi, February 2004, p 161.5 Judgment of the high court, Murder Reference 1

of 2003, October 29, 2003, para 448.6 The high court had observed earlier that Afzal’s

arrest memo was in fact signed by Geelani’sbrother, Bismillah, while Bismillah was himself in ‘illegal confinement’ and he was forced to‘sign papers’ (judgment of the high court,para 251).

7 Tehelka: The People’s Paper , October 16,2004, p 21.

8 Basharat Peer, ‘Victims of December 13’, TheGuardian Weekend , July 5, 2003.

9 In fact, ‘It is indeed surprising that… theinvestigations were not handed over to thepremier investigating agency, the CBI, but toan agency whose capacities are so much indoubt’, Trial of Errors: A Critique of thePOTA Court Judgment on the 13 December Case, Peoples Union for Democratic Rights,Delhi, February 2003.

10 Basharat Peer, ‘Victims of December 13’, TheGuardian Weekend , July 5, 2003.

11 See my ‘The Media and December 13’, Znet South Asia, September 30, 2004.

12 Nandita Haksar and K Sanjay Singh,‘December 13’, Seminar 521, January 2003.

13 Written submissions on behalf of S A R Geelani,Murder Reference 1 of 2003, presented byRam Jethmalani, senior advocate.

14 ‘A Wife’s Appeal for Justice’, Kashmir Times,October 21, 2004.

15 For a recent review of the functioning of thespecial cell, see my ‘A Very Special Police’,

Znet, June 29, 2005.16 See December13 , pp 70-80 for a detailed

discussion of the murky business of arrestmemos.

17 ‘What’s In a Name?’, Thaneplus, The Timesof India, Pune edition, December 26, 2001.

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